Family Law FAQs

Family Law FAQs

Q) Should I wait until I am divorced to update my Will?

A) Absolutely not.

We always advise our clients to enter into a new Will from the start of the divorce process.

A Will can be drafted in contemplation of your divorce so there is no need (unless circumstances change) for you to redo your Will once your divorce is finalised.

Many people do not realise that if you do not have a Will in place your spouse will still be entitled to a share in your estate up until your divorce is finalised (no matter how long you have been living separate lives).

Q) I cannot agree with my ex about who the children should live with when we separate. What should I do?

A) At Crosby &Woods, we deal with all types of Child Arrangements matters (including contact, residence and removal from the jurisdiction).

We understand that these matters require a sensitive and pragmatic approach. We will advise you on how to reach an outcome which will put the best interests of the children first.

Q) If I separate from my spouse/partner will I have to leave my home?

A) This all depends on how your own your property and what the circumstances are. Generally speaking, if you own a property you are entitled to occupy that property. You may be excluded from your own property only by way of an occupation order (this is an order stopping you entering a property and allowing someone else sole use of that property).

If you do not own the property you may have a right to remain in the property pursuant to your marriage. We suggest you seek independent legal advice on your specific circumstances to be sure.

Q) Is there such a thing as a ‘common law’ spouse?

A) The simple answer is no.

Despite popular belief, you do not acquire the same rights as those who are married simply because you have lived together for so many years. You may be able to claim an interest in a property if you have made a financial contribution to that property or you have relied on the knowledge that you would have a share in that property.

You may also be able to obtain some support on the basis that you have children together. We suggest you seek independent legal advice on your specific circumstances to be sure of your position.

Q) What is a residency order?

A residency order is issued by the Family Proceedings Court and details which parent, grandparent or guardian the children should live with.

This order will remain in place until the child/children reach 16 years of age, or longer if there are exceptional circumstances to consider.

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